Cheney Next. Why Libby is Going to Trial, and Rove Isn't.

[leveymg]

The question is being asked at DU, "If Rove 'told the truth' to the FBI, that he was the one who spoke to Novak, then why in blazes is LIBBY the one being nailed?"

That question was raised by an interesting AP analysis by Peter Yost, "Telling FBI the truth saved Rove", Tue Jun 13, 2:07 PM ET, http://news.yahoo.com/s/ap/20060613/ap_on_go_pr_wh/rove_analysis

WASHINGTON - The decision not to charge Karl Rove shows there often are no consequences for misleading the public.

In 2003, while Rove allowed the White House to tell the news media that he had no role in leaking Valerie Plame's CIA identity, the presidential aide was secretly telling the FBI the truth.

It's now known that Rove had discussed Plame's CIA employment with conservative columnist Robert Novak, who exposed her identity less than a week later, citing two unidentified senior administration officials.

Rove's truth-telling to the FBI saved him from indictment.

And by misleading reporters, the White House saved itself from a political liability during the 2004 presidential campaign....

Simply put, Libby was indicted because he lied about who set the whole scheme to out Plame in motion: Dick Cheney. At least, Scooter lied initially in his testimony to the FBI and before the Grand Jury. That's why he's being nailed for Obstruction of Justice (lies to investigators) and Perjury (lies under oath before the GJ).

Rove went back and forth, recanting some of his earlier testimony, but provided enough useful information for Fitz to nail Libby. Now, Fitz has the choice about whether to go after Cheney for his lies. I think Fitz is going to do just that.

First, indications are that Cheney is going to be forced to testify in the Libby case. Then, depending upon how many lies he tells there, Fitz will decide what charges to file against him.

A tortuously slow process, and frustrating for us. But, not half as much as it is for them.

The Case Against Cheney

If you read the NY Times or WaPo yesterday, you might have the impression that it's all over, and the "cloud" of further prosecutions has been lifted from the Bush-Cheney Administration.

But, there are still those who stubbornly insist the Plame prosecution isn't going to stop with Scooter Libby, and there are indeed bigger fish in Fitz's skillet. In fact, the consensus within this group seems to be that the next target will be the Vice President.

What exactly does Fitz have on Cheney? I think the answer may be in a diary put up yesterday by emptywheel, who blogs at The Next Hurrah, and regularly posts at DailyKos. emptywheel is the pen name for Marcy Wheeler, who was a featured speaker at the YearlyKos convention Plame panel discussion carried by C-Span last week. Ms. Wheeler's diary yesterday, "My Take on the Rove Announcement", http://www.dailykos.com/story/2006/6/13/9339/59486 , was followed by some 300 comments, to which the author generously responded to more than few. Ms. Wheeler is clearly among those who doesn't think the case is over.

About a third of the way down that thread, va dare commented:
I'm not a lawyer but as a historian, I've spent (too much?) time in dusty courthouses reading cases and document filings. The language of Fitzgerald's May 24, '06 response http://www.usdoj.gov/usao/iln/osc/documents/2006_05_24_governments_reply.pdf to Libby's request for access to evidence is strongly suggestive that the next logical target would be the VP. Not for the leak itself but as part of a conspiracy. I'm with emptywheel on this - not that Rove isn't guilty as hell of high crimes but Fitzgerald seems to be amassing more evidence re: Cheney than any other administration figure.


To this, emptywheel responded:
Oh, he might charge him for the leak means are the ends. The IIPA leak is the one charge here that can't be whisked away by the VP's ability to insta-declassify. And we don't know who leaked to Pincus, yet. If Cheney linked to Pincus, he would be the best collection of knowledge of Plame's covert status and intent.


I, (leveymg) got into the conversation at this point:
BUT, OOJ doesn't wash out, either. If Bush and Cheney neglected to tell Fitz about their instant declassification decision and their order to let subordinates leak parts of the classified NIE (or is that INR?) then the pair materially misrepresented the truth during their discussion with the Prosecutor.

That omission constituted Obstruction of Justice (OOJ), and declassification does nothing to change that -- in fact, it set up the very crime of lies by omission that Fitz can use to hang Cheney, and then, Bush after his term has expired.


Someone else,mattes then raised the question:
How much cover does National Security give them? Doesn't the prosecutor, need to prove that Bushco knew the niger info was bad, and used it anyway?


To which, emptywheel, answered,
No, not at all. Which is why he's arguing the case the way he has. He is not touching the question of whether they lied about the intell so he can more directly go after the interim lies, which avoid the hassles on classified information.


I,leveymg concurred, but added:
None. Fitz has a top secret security clearance, and no one can withhold information from him based on security concerns.

Second, Fitz's prosecution for OOJ or perjury centers solely on the issue of material misrepresentations or omissions in testimony to investigating officers and the Grand Jury. Fitz has said that he does not intend to go into the merits of the case made to go to war against Iraq, including the veracity of the Niger yellowcake forgeries.

The case against Libby all comes down to lies -- either affirmative misrepresentations or omissions.

We can assume that neither Bush nor Cheney told the FBI or Fitz about their "authorizing" Libby and other aides to disclose classified CIA information to reporters. If they had, up front, there might not be a case. Seeing as how Cheney likely didn't, he lied, and can be charged with OOJ. Bush can be similarly charged after he's out of the Oval Office.

Anyone who's granted a pardon, can't claim 5th Amendment priviledges before any future Grand Jury, so Fitz retains some powerful weapons to compel testimony from both. Pretty neat.

So, nobody should be really upset at this point. This prosecution is a long-term enterprise.


mattes, apparently satisfied with that, responded:
Cool.


emptywheel had a somewhat longer reply:
Though on a different issue. Fitz is not going after Cheney for the NIE stuff--he has agreed with them that they told him about the NIE and that it's on the up and up. But that's the rope Fitz has handed them. Because Libby has said he was told to leak the NIE. Cheney's role in the NIE was almost certainly a topic of discussion at their meeting. But their NIE story is falling apart, badly. Which will get them very close to the smoking gun that Cheney ordered Libby to leak PLame's identity.


leveymg continued on that point:
It's Cheney's authorization of Libby to leak classified information that constitutes the lie -- and the crime of OOJ. That "authorization" wasn't previously disclosed to investigators until Libby revealed it to the Grand Jury a few months ago.

I think there's an open and shut case against Cheney on that count.

After Bush departs the Presidency, he can also be charged with the same crime. He's already admitted be authorized the summary "declassification" of the NIE.


emptywheel took issue with that point:
No. That was revealed to the GJ at least as early as March 2004. We just learned of it recently.

But I'm making a distinction. Libby told that lie (and I'm sure it's a lie) to explain away something he had in his notes, just before July 8, telling him to leak something to Judy. He testified he was told to leak the NIE. That lie is falling apart right now.

Fitz isn't challenging their ability to declassify the NIE because he doesn't have to. Like I said, it's the rope that he will use to hang them. Because by getting all worried about proving their right to insta-declassify, they have forgotten to protect their lie made to cover up the fact that Cheney told Libby to leak Plame's identity.


leveymg sought clarification:
No, no. We agree. It's their lie made to cover up the fact that Cheney told Libby to leak Plame's identity that's the crux of an OOJ case. I'm not arguing that the insta-declassification nonsense is the issue. However, if Cheney and Bush failed to tell Fitz that they had declassified related classified documents and urged their aides to leak them to the press, that would also be OOJ. That would also make most of the case for a conspiracy prosecution under the IIPA.

I think you're right. There has to be a nexus established between the documents Cheney and Bush ordered declassified and Plame's undercover identity or Wilson's trip to Niger to make them relevant to Fitz's prosecution. Any old insta-declassified document that was illegally turned over to reporters just would not do in this case. It has to be relevant to Plame or Wilson.

Do you agree that Libby's testimony is sufficient to show that Cheney lied to Fitz? Undoubtedly, the Veep has denied he told Libby to reveal Plame's identity before Scooter had breakfast with Judy at the St. Regis the morning of July 8, 2003. If I recall correctly, the document identifying (Mrs. Wilson)* was the INR that Scooter received on May 31 from Grossman at State that was recombined into the July 7 version of the NIE. Fitz will try to connect conversations Cheney had with Scooter and others between May 31 and the St. Regis outing on July 8, and tie those documents in. That seems to be where that line of prosecution is headed.

Have you seen any solid evidence that Cheney admits to having "declassified" the INR, as well, or that he told Fitz that in 2004? Where is it written that Cheney admitted in 2004 to Fitz that he had insta-declassified the NIE?

Thanks.


emptywheel responded:
Not INR memo. In fact, I don't even know whether Libby ever saw it--he learned of its contents from Grossman, but may not have seen it.

Here's what I think has happened.

Cheney agreed that he had ordered Libby to leak the NIE.

So long as the NIE lie held up, then Libby was on the line for his lies, but Cheney was fine. But the NIE story is falling apart. Which means Libby will be slapped with another count of perjury, for lying about the NIE. But in this calculation, Cheney gets indicted for IIPA or conspiracy to IIPA, not obstruction per se. I don't know whether Fitz asked Cheney if he ordered the leaking of PLame's identity.


At this point, I left the discussion. I want to go back through my notes to dig out the INR and NIE, and read them over again before getting back to Marcy on another occasion. Someone else, Major Flaw wrapped up the subject on what I think is an appropriate note.

MajorFlaw :
I am inclined to agree. If the Chief of Staff to the VP had made the decision to leak without the knowledge and approval of the VP he would have been thrown overboard long ago. Not for the act of treason but for insubordination. Deadeye Dick appears to be The Big Kahuna here and the game isn't over.


*******
A concluding word. For those who think the game's over, to paraphrase Yogi Berra, "It ain't over until Fitz says it's over."

_________________________
* (Correction)

[bear425]

1. 5! k/r

Thanks for that analysis. I concur.

[Patsy Stone]

2. Five recs

and no responses?

"Was it over when the Germans bombed Pearl Harbor???"

[Pithy Cherub]

3. A couple of philosophical points.

The Leak Case isn't over when those who say they are being investigated say its over. That seems to be a fundamental target/point that the media misses due to their own complicity. Due to Fitgerald's leak-proof, sound-proof and spy-proof office the mainstream media fills the void with the narrative they believe helps them. The MSM also waits to repeat items, not report on their (cough)investigation - a critical difference that plays into the bush cheney cabal's narrative.

Rove obviously cooperated and corroborated information. Rove has one prinicpal Client, his badly wounded POTUS. Cheney is/was protected by Libby in the same way Rove protects Bush. The two camps are not singing out of the same hymnal. Roves "clearing" serves as a message to Cheney that he is minus his star player while Bush still has his on speed dial. Rove is a revenge minded guy...and Cheney has made much trouble for his POTUS.

Libby is alone and scared. Cheney is relying on Libby's will and goodwill. Cheney can be further damaged by becoming an unindicted co-conspirator, a new Official A or flat out indicted. The caution is that Cheney wasn't under oath (that we know of) when he spoke to Fitzgerald. Fitzgerald has to strategically decide to get him under oath in a manner that won't tie him up the way Libby has tried. Libby is an infrastructure necessity to expose the OVP and it is really going to be Good versus Evil.

Excellent recap leveymg! :popcorn:

[Nothing Without Hope]

6. "The two camps are not singing out of the same hymnal." LOL!

Such a bunch of caroling angels.


K & R for this fine thread.

[leveymg]

8. A few counter-points

No doubt that reporting on this case is being spun by Luskin, and most of all by the White House's allies within the MSM, itself. When you study the details, and talk to people as knowledgable as Marcy, you realize that some of those who work at the NYT and WP either aren't telling the truth or are just plain too lazy to read the court documents. Thankfully, we have a bunch of hard-working, smart people who are doing this without pay. Without the emptywheels and kpetes and stopthebleedings and all the rest, this country would be SOOL.

As for the divisions between OVP and POTUS, those are real, but shouldn't be overstated to the point where we start to cheer for one side over the other. The WHIG was made up of key people from both --and they should go down, together or one after the other, but they both need to go down for their mutual crimes.

Finally, a charge of OOJ will stick whether or not Cheney is placed under oath. Additional perjury charges would be icing at this point. What's important about Libby is that he can tell us what Cheney told him to do -- and that's necessary,without an admission from Dick (unlikely), to charges under the Intelligence Identities Protection Act (IIPA). I think that's what emptywheel was getting at. Cheney lied when he said that all he intended Libby to turn over was a section of the classified NIE -- what Libby and everyone else took him to mean (and that's what Cheney REALLY wanted) was for Scooter and crew to reveal Plame as a CIA officer, a fact that is referenced in both the INR that was faxed to Scooter on May 31, 2003 and more indirectly in the July 7 version of the NIE. Again, I want to take another look at those documents before I talk more about their importance to any prosecution of Cheney.

Thanks -

[Pithy Cherub]

10. We agree. Organizational chaos is what brings down empires.

It happens in corporations (a main reason so much M&A activity becomes unprofitable), it happens in politics and it happens on smaller personal scales. Cheering isn't my point. It is more open recognition that people/teams who do not trust each other fail to make common cause or progress. Trust has been broken in a way that can't be repaired inside The White House involving the two leaders of different teams. It is much more a signal to watch which agendas become actionable and which fall to the wayside. Meanwhile, Fitzgerald continues to seek information through evidence for a trial and information in his ongoing investigation. This White House is motivated by fear and revenge which are the destabilizers of any enterprise. The fact that they are turning on each other is cause for concern - not jubilation because we all get wounded in the crossfire.

An OOJ charge is primarily predicated on the fact that Libby breaks(not so sure he will). In that case, the cup will runneth over in charges. On the other hand, if Libby doesn't blab, Fitzgerald has to have other evidence/people who will directly implicate Cheney.

The media, our sleeping guardians of truth have been wishing this away for so long and it is not going away because of the efforts of people who care, like yourself.

[joeunderdog]

4. Anyone remember that moment during that Cheney ingterview when

he was being asked about his hunting "accident" when he slipped in some irrelevant comment about his power to declassify information? That point had no place in the interview as it was, but Dickless felt the need to make a public statement about it for reasons that made me suspicious. That sort of dovetails with some of the specultation in the OP here.

If Rove is off the hook, it's because a bigger fish is on it. Looks like the VP may be feeling the heat.

[stop the bleeding]

5. Some good thinkers and analysis in that conversation

I love how it is coming down to those first weeks in June 03 in regards to the NIE/INR documents, I saw Wheeler speak on CSPAN and guessed at that time based on last name, thoughtful comments, and well reasoned analysis that Wheeler was the emptywheel poster that I read from time to time, we are very fortunate to have people like her and you Mark.

Great recap and I am looking forward to your next addition on this matter.

[Spazito]

7. Interesting and educational OP, thanks for posting this

Thanks for getting us back to the REAL issue, much appreciated.

[Nothing Without Hope]

9. Discussion of the related LAT article at Firedoglake - and this headsup:

The upcoming Frontline on June 20 sounds like something we all need to see. I hope someone makes at least excerpts available online.

http://www.firedoglake.com/2006/06/14/finally-we-get-to-the-bigger-question

Finally we get to the bigger question

(snip - lengthy excerpts from the LAT article (http://www.latimes.com/news/nationworld/nation/la-na-assess14jun14,0,985731.story?coll=la-home-headlines) and a comment to the effect that it's about damn time, and they are still not looking at all that is important)

Frontline has an important piece coming up on the 20th of June at 9:00 pm ET entitled "The Dark Side." (http://www.pbs.org/wgbh/pages/frontline/darkside). I’ll let their description speak for itself:

On September 11, 2001, deep inside a White House bunker, Vice President Dick Cheney was ordering U.S. fighter planes to shoot down any commercial airliner still in the air above America. At that moment, CIA Director George Tenet was meeting with his counter-terrorism team in Langley, Virginia. Both leaders acted fast, to prepare their country for a new kind of war. But soon a debate would grow over the goals of the war on terror, and the decision to go to war in Iraq. Cheney, Defense Secretary Donald Rumsfeld, and others saw Iraq as an important part of a broader plan to remake the Middle East and project American power worldwide. Meanwhile Tenet, facing division in his own organization, saw non-state actors such as Al Qaeda as the highest priority. FRONTLINE’s investigation of the ensuing conflict includes more than forty interviews, thousands of pages of documentary evidence, and a substantial photographic archive. It is the third documentary about the war on terror from the team that produced Rumsfeld’s War and The Torture Question. (Emphasis Christy Hardin Smith's.)

That says must see teevee if I ever saw some. Pass some popcorn and call up the WHIG, the media have decided to make Cheney the story, and perhaps put Rummy in the passenger seat as the expendable duo. Anything to prop up those sagging ratings and public perceptions prior to the fall elections, I suppose, but it’s an awfully pathetic strategy to argue that the President of the United States has no responsibility for failed policy initiatives because his top lieutenants are implementing them behind his back, isn’t it?

Of course, you can’t have people actually thinking about it in those terms: either the President knew and approved of pushing a war forward based on a false information campaign of cherry picked intelligence to sell a bill of goods the American public, or he didn’t know all the facts because the President of the United States was bypassed by his own crony minions who rushed him into a war that he wanted for reasons that have not been fully explained to the public. You choose. Uh oh, we need a diversion.

(snip)

[Nothing Without Hope]

13. Excerpt from the ***RELATED LAT ARTICLE*** mentioned in the previous post:

There is quite a long excerpt posted in the discussion at Firedoglake. The emphases in the 4-paragraph portion below are Christy Hardin Smith's. Again, the Firedoglake discussion is here: http://www.firedoglake.com/2006/06/14/finally-we-get-to-the-bigger-question

http://www.latimes.com/news/nationworld/nation/la-na-assess14jun14,0,985731.story?coll=la-home-headlines
9:53 AM PDT, June 14, 2006
NEWS ANALYSIS

GOP Hopes to Close Door on Scandal

Observers ask whether there's still political meaning to the CIA leak inquiry. Democrats say the case "ain't over."
By Peter Wallsten and Tom Hamburger, Times Staff Writers

(snip)

Fitzgerald released a copy of Cheney’s handwritten notations atop Wilson’s article: "Have they done this sort of thing before? Send an Amb. to answer a question? Do we ordinarily send people out pro bono to work for us? Or did his wife send him on a junket?"

Indeed, the notion that Wilson’s trip to Africa was a junket arranged by his wife became a central part of the White House effort to undermine the former envoy, whose lengthy State Department career included postings in Iraq and Africa. The anti-Wilson campaign coincided with White House planning for the 2004 campaign.

Fitzgerald’s investigation also led to revelations that Bush — who for months had promised to root out leakers in his administration and punish whoever disclosed Plame’s identity — had authorized the release of classified information.

Wilson’s contention that so offended the White House — that the administration twisted intelligence to justify the invasion of Iraq — has since drawn support from intelligence officials around the globe, including former officers of the CIA. And the Niger uranium case that he described in his controversial article has become exhibit A in the cache of evidence assembled by critics to suggest that the administration cherry-picked intelligence information to justify the case for war.

(snip)

[magellan]

11. Most excellent, highly beneficial product

I give it a :thumbsup: for ease of use and another :thumbsup: for its anti-angst properties.

Seriously, a big thanks, leveymg! :)

[H2O Man]

12. Very well done.

Nominated.

[Kablooie]

14. Too Optimistic.

I don't thing Fitz has Cheney at all. Cheny has too many options for alibis. (National Security, Declassified info, etc. )

He freed Rove so Rove has no defense not to testify against Libby.

I'm afraid that Libby is the ONLY person going down. Everyone else will get off scott free.

Sorry, but I can't be optimistic here. Sounds like pie in the sky to me.

[Ksec]

15. I hope Fitz is reading Marcy Wheelers posts

Shes a smart cookie. Ive always enjoyed her posts and her ability to dissect.

[blue cat]

16. Give up hope

I did, after listening to Mike Malloy on Air America yest.

[ComerPerro]

17. don't kid yourself